Developing Mitigation Evidence, Janet Hinton (FPD E.D. MO)

Introduction

Mitigation evidence is critical to effective sentencing advocacy. It is the key to helping your client avoid imprisonment or reducing its severity. Mitigation encompasses any circumstances that significantly affect or affected your client’s character and behavior related to the offense. Mitigation possibilities are of course endless. There is often important information in the client’s history which will need to be gathered by the attorney and presented to the probation officer, prosecutor and the court. Mitigation evidence can be created and further developed from the initial client meeting up until the sentencing. This page is designed to assist defense counsel in identifying, understanding, and persuasively presenting all mitigating evidence and advocating for the lowest possible sentence.

Gathering Information

Interviewing the Client:

The client interview is the starting point for developing mitigation evidence. Use this time to identify the client’s strengths, achievements, and support networks. This is also an opportunity to begin understanding the early developmental and environmental context within which the client grew up, and to uncover possible mental health or mental disability issues (including any history of sexual abuse underlying such issues). Screening for an abuse history (physical, emotional, and sexual) is important. Some survivors of what clinicians would clearly label abuse do not label their own experiences in that way, or some survivors desire to avoid the stigma associated with the term abuse. Be alert to signs suggesting abuse, trauma, mental illness, or cognitive impairment during interviews with the client and in the records you gather. People generally are reluctant to admit they have mental impairments because they fear the stigma that results. Be mindful that people with mental retardation have learned to mask their deficits, are eager to please, and may give the answer they think you want to hear. When explaining a concept to a client, it is helpful to ask him or her to tell you what it means. A client may not be able to articulate what is mitigating but, through careful observation, you will identify it. Resources for conducting a productive client interview include:

Interviewing the Client’s Family and Other Contacts:

Interviewing the client’s family and other people who know him or her may help corroborate or supplement information provided by the client, or provide new information that the client did not disclose. Keep in mind that family members may suffer from some of the same limitations as your client. Family members may also have health needs which support arguments in mitigation. Helpful sources outside the family include friends, caretakers, teachers, mentors, neighbors, clergy, employers, coworkers, coaches, social workers, counselors, etc. Resources for conducting such interviews include:

Collecting and Analyzing Life History Records:

School, medical, mental health, social services and other types of records can provide a great deal of corroborating or new information on potential mitigating facts. Keep in mind that many times a client’s mental health condition is never recognized by medical treatment providers and will not appear in the records you have gathered. Where family members suffer mental or cognitive limitations or have health needs that support mitigation arguments on the client’s behalf, these records should be obtained if possible. In some instances these records can be obtained from the client, family members, or others; however, in some instances the records are only available from official sources, requiring a client release or subpoena. Resources for obtaining records include:

Understanding the Information

The story of your client’s life and path to the offense is told in the records and interviews. Rule nothing out as mitigating until you have closely reviewed the records and educated yourself about potential issues. There are many mitigating circumstances you may consider. Records and interviews with family or other persons may reveal additional sources of information that the client failed to recall. Conversely, counsel should not be surprised if records sometimes lack relevant circumstances, such as a client’s mental condition that was overlooked by treatment providers.

Use of Experts

An interview with a client or analysis of a client’s records often reveal some medical, psychiatric, or cognitive impairment that necessitates consultation with an expert. Experts can help piece together a life history and explain how a client may have arrived at the present point in his life or link the client’s characteristics and history to the offense. Background information you have gathered that is necessary for an accurate and reliable mental health evaluation should be provided to the expert. In turn, information provided by the expert can require additional investigation into the client’s history that support arguments in mitigation and help the attorney better understand the client’s family history, frame of mind, behavior, and level of functioning. Consider the need for the expert to educate the judge about relevant mitigating evidence through a letter, report, or testimony at sentencing. Present the rich, deep, complex understanding of the client, rather than a singular diagnostic criterion.

Assessment/Testing - Where a history of cognitive or psychological impairment is known or suspected, it is necessary to enlist an expert to thoroughly assess the client’s level of impairment and functioning. There are numerous tests that may need to be considered in connection with such experts (psychologist, neuropsychologist, psychiatrist, neurologist, substance abuse counselor, etc.). For additional information regarding testing:

Funding for Experts - 18 U.S.C. Sec. 3006A(e)(1) directs the Court, “upon request,” to approve finances as to obtain investigative, expert, or other services necessary for adequate representation...”

Persuasive Sentencing Advocacy

Defense counsel must disrupt the judge’s comfort with the Guidelines and lead him or her to the criteria in Section 3553. For excellent advice from one district court judge on how defense counsel should approach sentencing, click here. Judges are required to follow the framework in § 3553(a) and the Supreme Court’s decisions. Under this framework, judges must consider all mitigating factors that are relevant to any purpose of sentencing and are free to ignore contrary policy statements in the Guidelines. For reasons why judges should vary from the Guidelines based on mitigating factors that the Guidelines prohibit or discourage, click here.

The correct way to analyze mitigating factors is set out in Pepper v. United States, 131 S.Ct. 1229, 1242-43 (2011), and Gall v. United States, 552 U.S. 38, 53-60 (2007). The question is whether the individualized facts are relevant to the purposes of sentencing.

Sentencing Memorandum

Defense counsel should present all relevant mitigating arguments to the district court in a persuasive sentencing memorandum, advocating for a sentence which is sufficient but not greater than necessary to comply with the purposes of sentencing. A sentencing memorandum should address all the sentencing factors in 18 U.S.C. § 3553(a). Click here for case law supporting a variety of arguments for variances and departures.

If the client is 67 years old, you must show why it matters to one or more purposes of sentencing. For example, the client’s age is highly relevant to the need to protect the public from further crimes by him because his risk of recidivism is statistically low.

It is critical to tie the mitigating facts to one or more of the purposes of sentencing and the parsimony clause in section 3553(a).. If counsel requests a sentence below the guideline range, the memorandum should provide a solid foundation for the sentencing court’s Statement of Reasons.

Choose a theory and theme for sentencing. A good sentencing theory tells a moving story that explains how and why your client should receive the sentence you are requesting. Brainstorming the facts will help to identify and develop a persuasive sentencing theory and theme. Click here for how to brainstorm the facts in a manner that will maximize the potential of developing those facts into a persuasive sentencing theory. For guidance on how to develop a theory and theme for sentencing, click here. Select scenes from your client’s story/history to illustrate your theory. Avoid conclusory/legal language in your sentencing memorandum. Organize your sentencing memorandum for impact. Begin with the strong and end with the strong. For tips on writing persuasive sentencing memos, click here. For storytelling techniques to advance a persuasive sentencing theory, click here. Here are excerpts of persuasive sentencing memoranda:

Sentencing Hearing and Presentation of Mitigation

The sentencing judge must give defense counsel the opportunity to present all non-frivolous arguments. The Supreme Court expects each individual’s sentencing to be subject to “thorough adversarial testing.” Rita v. United States, 127 S.Ct. 2457, 2465 (2007). There is to be no limitation on what the judge can consider at sentencing. 18 U.S.C. § 3661. The rules of evidence do not apply.

How do you persuasively present mitigation evidence at the sentencing hearing? Consider the following:

The Allocution Pleading, developed by AFPD Tony Lacy, is often used at sentencing. It contains a series of questions based on the section 3553(a) factors. Practitioners can present these questions to a client before sentencing, allowing the client to put in his or her own words what facts and circumstances the court should consider in fashioning an appropriate sentence. Answering these questions for the sentencing judge encourages the client to think about the sentencing process, and it provides insight lacking in the Presentence Investigation Report.

Character or reference letters are also an important part of persuasive sentencing advocacy. A suggested approach to gathering such letters can be found here. Letters should always be sent to defense counsel and not directly to the court.

Consider the power of images and the use of sentencing videos and pictures. Use demonstrative evidence when appropriate to make your points. Consider using a sentencing video in your presentation. For suggestions on when and how to effectively use a video, click here.

When using witnesses, be they experts or lay witnesses, prepare them as you would for a trial.

Remember to give the court alternatives to prison or examples of the appropriate sentence:

For example, if you are explaining to the judge that your client’s mental retardation negatively impacted his decision to sell drugs, you will want to consider submitting, in addition to an expert’s evaluation of your client showing his mental impairment, an independent source (perhaps an academic article or government study) explaining mental retardation’s impact on behavior and culpability.

Finding the Resources

To find support for a given mitigation theory, consider using empirical research that addresses the client’s particular circumstances or condition. Sources for such research include:

Mitigating Circumstances